In an extremely encouraging new development on the fracking front here in New York, yesterday Department of Health Commissioner Nirav R. Shah wrote to Department of Environmental Conservation Commissioner Joe Martens saying: "I have determined -- and prudence dictates -- that the DOH Public Health Review will require additional time to complete based on the complexity of the issues." Specifically, he indicated that the review would not be completed for "a few weeks."

This means that the state will not be able to meet a looming deadline for finalizing the fracking regulations under the State Administrative Procedure Act by the end of February, which, in turn, means that the state would need to start its rulemaking process anew if it were to decide to proceed.

Dr. Shah powerfully explained the need for the further review as follows:

The decision to permit HVHF [high-volume hydraulic fracturing] is important, and involves complex questions about the impact of the process on public health. The time to ensure the impacts on public health are properly considered is before a state permits drilling. Other states began serious health reviews only after proceeding with widespread HVHF.

In my view, that is not the right approach for New York to take if we are serious that public health is the paramount question in making the HVHF decision. And as Health Commissioner, protecting the public health is my primary job. [...] From the inception of this process, the Governor's instruction has been to let the science determine the outcome. As a physician and scientist, I could not agree more. Whatever the ultimate decision on HVHF going ahead, New Yorkers can be assured that it will be pursuant to a rigorous review that takes the time to examine the relevant health issues.

Further, notwithstanding the refence to a "few weeks'" delay in finalizing the health review, Dr. Shah's letter provides a strong indication that a final decision on fracking in New York may be much more significantly delayed - perhaps even by years. Dr. Shah indicated that the delay is at least in part necessary to evaluate the importance of several new studies that represent "the first comprehensive studies of HVHF health impacts at either the state or federal level."

In particular, Dr. Shah identified: (1 ) the on-going investigation by the federal Environmental Protection Agency regarding the impacts of fracking on drinking water supplies; (2 ) a study by Geisinger Health Systems to evaluate health impacts in Pennsylvania; and (3 ) the recently announced study into health impacts to be conducted by researchers from the University of Pennsylvania, Columbia, Johns Hopkins and the University of North Carolina.

Each of these studies is slated to take from months to years to complete. Should DOH conclude - as it should - that the proper precautionary approach is to await the results of these "first comprehensive studies," any determination on fracking here could be very far away.

In response to the DOH letter, DEC Commissioner Martens issued a press release that created some confusion by indicating that:

The previously proposed high-volume hydraulic fracturing regulations cannot be finalized until the SGEIS is complete. However, this does not mean that the issuance of permits for high-volume hydraulic fracturing would be delayed. If the DOH Public Health Review finds that the SGEIS has adequately addressed health concerns, and I adopt the SGEIS on that basis, DEC can accept and process high-volume hydraulic fracturing permit applications 10 days after issuance of the SGEIS.

Holding aside the question whether DEC can legally issue permits without first finalizing regulations on the basis of the environmental review - an issue that would certainly be litigated by the environmental community should it attempt to do so - this does not really indicate that, as some have suggested, fracking permits could issue after 10 days following the "few weeks" it takes DOH to complete its fracking review.

First, importantly, Mr. Martens confirmed that "I will not issue a final SGEIS until that review is complete and I have received Dr. Shah’s recommendations," and further that:

If...the DOH review finds that there is a public health concern that has not been assessed in the SGEIS or properly mitigated, we would not proceed, as I have stated in the past.

It seems highly likely that the DOH review will recommend further consideration of the health impacts - particularly in light of the specific reference to the three studies mentioned above, none of which will be remotely close to completion within a "few weeks."

As such, a final SGEIS followed by permits in the near term seems an unlikely outcome. And, again, should that in fact transpire, any permits could well be tied up in a furious litigation battle.

Viewed together, yesterday's announcements are best read as the reaffirmation New Yorkers have been so eagerly awaiting of the Governor's long-standing commitment to a deliberative process and promise to let science rule the day.

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